Law & Disorder —

Is Apple using patents to hurt open standards?

An Opera developer is accusing Apple of working to undermine the creation of …

Opera developer Haavard Moen has accused Apple of repeatedly using patents to undermine the development of Web standards and block their finalization.

World Wide Web Consortium (W3C), the industry group that governs and oversees the development of Web standards, requires that every specification it approves be implementable on a royalty-free basis, barring extraordinary circumstances that justify an exception to this rule. The specifications can contain patented technology, as long as royalty-free patent licenses are available.

Members of W3C—a group that includes representatives from Apple, Microsoft, Google, Mozilla, and Opera—are required to disclose any patents that they hold that are relevant to each specification. Depending on how far the specification is through the standardization process, they have between 60 and 150 days to make this disclosure.

If royalty-free licensing is available, the specification can proceed as normal. Participation in the development of a particular specification obliges W3C members to offer royalty-free licensing for technology used in that specification. Nonparticipants can also voluntarily offer a royalty free license, but they are not obliged to.

If, however, there is no commitment to offer royalty-free licensing for the patents in question, a Patent Advisory Group (PAG) is formed. The PAG will then assess whether the patent is truly applicable to the specification, and if so, how best to address the issue. The PAG might then seek prior art to invalidate the patent, or it might recommend that the specification be modified, to work around the patent. It might even advise abandonment of the specification. Only in exceptional circumstances will it decide that the specification should stand, in spite of the lack of royalty freedom.

Without an appropriate patent grant, browser vendors—whether open source or proprietary—cannot implement the specification without opening themselves up to a lawsuit. Such specifications would be, at best, an extremely risky proposition for anyone seeking to develop a browser, and none of the major browser vendors would even consider implementing a specification with known unlicensed patents.

Haavard identifies three separate occasions, twice in 2009, and again in 2011, where Apple has disclosed patents and not offered royalty-free licensing. In the first 2009 patent claim, Apple said that it had a patent covering W3C's "widget" specification. A PAG was formed, and determined that Apple's patent was not relevant. In the second 2009 claim, Apple claimed to have two patents covering W3C's widget security specification. A PAG was again formed. It decided that one patent was not relevant, and the other didn't apply. With both 2009 claims, Apple waited until the last minute to disclose its patents.

Touch events

This time, Cupertino is claiming to have three patents, and an application for a fourth, that cover some of W3C's touch event specification. This time the disclosure was made with about a month left to go. Again, the lack of royalty-free licensing means that a PAG is likely to be formed.

This in turn will delay the development of the specification and cost W3C members further time and money. The PAG process is not quick; the widget security PAG did not deliver its verdict until October of this year.

Haavard's conclusion is that there is a pattern of behavior here; that Apple is trying to disrupt the standards process with its patent claims. He references the touch specification in particular—this is plainly an area where Apple has lots of expertise and interest in the technology, but the company opted out of working on the specification. If Apple had worked on the specification, it would have had to disclose sooner and offer licensing, and Haavard believes that avoiding this commitment is why Apple refused to work on the specification.

Apple is acting within its rights. W3C obliges members to disclose patent claims, and Apple is duly disclosing them. However, it's easy to be sympathetic to Haavard's argument. The two prior PAGs that resulted from Apple's refusal to offer royalty-free patent licenses delayed and inconvenienced W3C, but ultimately on both occasions the groups decided that Apple's patent claims were irrelevant. If Apple was hoping to keep some technology to itself, it did not succeed.

Moreover, W3C doesn't require patent-holders to give up their competitive advantage. It's acceptable to W3C for the royalty-free patent licenses to only cover implementations of the W3C specifications; if Apple wants to permit the royalty-free use of its touch patents in HTML5 browsers, but nowhere else, this would be an option. Such terms would allow browsers to implement the standard but still keep the technology off-limits to, for example, Android. But Apple did not offer such terms before, and so it seems unlikely that it will offer such terms this time.

Further, the only likely result of this is that Apple's patents simply get worked around. W3C's aversion to royalties means that it's unlikely that it would accept any non-free license (should Apple even offer one), and the importance of touch input to phones and tablets means that W3C is unlikely to abandon the specification altogether. There's no win possible for Apple—just wasted time and money for those seeking to make the Web a more effective, more open platform.

Indeed, the result might even constitute a loss for Apple; the prior art that PAGs can uncover could jeopardize the patents themselves. The PAG subjects the patents to a certain amount of scrutiny—scrutiny that could be avoided through provision of a suitable license.

Apple has thus far not responded to our request for comment.

Apple's work on WebKit and with W3C has undoubtedly helped the Web community. But actions such as this show the company's approach to standards and intellectual property is, at best, inconsistent, and and worst downright unhelpful: if open standards and Apple's IP interests conflict, it's the IP interests that win out. This may be good for Apple, but it's bad for the open Web.

I'm with RobL777 on this one. The war on Flash, this type of crap, basically Apple's goal is to drive developers and consumers to their closed ecosystem store.

What computer developer wouldn't dream of not only controlling a major OS, what hardware it can run on - but also the only store you can buy programs for it with complete veto control on what can or can't be sold?

<blockquote>if Apple wants to permit the royalty-free use of its touch patents in HTML5 browsers, but nowhere else, this would be an option. Such terms would allow browsers to implement the standard but still keep the technology off-limits to, for example, Android.</blockquote>

And how often are other companies also exercising their rights to not commit these patents? Is Apple really being unique, or is this a story because the word "Apple" is in the headline? In the standards groups that I contribute to, patent disclosures (both with and without an offer to license) is a common occurrence.

Disclosures are not required because you are expected to license, they are required so you can work on the standard while showing that in good faith you are not holding submarine patents on that standard's technology. If joining a standards committee meant that you were _required_ to freely licensee any patent you own in any area that the committee someday chose to work in, then you've just signed a blank check.

This article would have been much more informative, if rather than reprinting an individual's blog post, Ars had done a survey on how often such disclosures are received from the full set of W3C contributors, and if those disclosures came with an offer to license, and _then_ wrote an article about which companies, if any, are outliers (which may or may not include Apple).

If, however, there is no commitment to offer royalty-free licensing for the patents in question, a Patent Advisory Group (PAG) is formed. The PAG will then assess whether the patent is truly applicable to the specification, and if so, how best to address the issue. The PAG might then seek prior art to invalidate the patent, or it might recommend that the specification be modified, to work around the patent.

And how often are other companies also exercising their rights to not commit these patents? Is Apple really being unique, or is this a story because the word "Apple" is in the headline? In the standards groups that I contribute to, patent disclosures (both with and without an offer to license) is a common occurrence.

Look at it this way: if joining a standards committee meant that you were _required_ to freely licensee any patent you own in any area that the committee someday chose to work in, then you've just signed a blank check.

Disclosures are not required because you are expected to license, they are required so you can work on the standard while showing that in good faith you are not holding submarine patents on that standard's technology. Basically, the body of the article says "Apple is playing by the rules that the W3C laid down, and the same rules every other contributor follows as well. How dare they".

If Ars were to be interested in producing quality original content, they would do a survey on how often such disclosures are received from the full set of W3C contributors, and if those disclosures came with an offer to license, and the resulting article wouldn't be specific to Apple unless Apple's behavior was actually shown to be an outlier.

Seems like the title is written that way because the article focuses on Haavard's findings, which seems to center around Apple.

And how often are other companies also exercising their rights to not commit these patents? Is Apple really being unique, or is this a story because the word "Apple" is in the headline? In the standards groups that I contribute to, patent disclosures (both with and without an offer to license) is a common occurrence.

Look at it this way: if joining a standards committee meant that you were _required_ to freely licensee any patent you own in any area that the committee someday chose to work in, then you've just signed a blank check.

Disclosures are not required because you are expected to license, they are required so you can work on the standard while showing that in good faith you are not holding submarine patents on that standard's technology. Basically, the body of the article says "Apple is playing by the rules that the W3C laid down, and the same rules every other contributor follows as well. How dare they".

If Ars were to be interested in producing quality original content, they would do a survey on how often such disclosures are received from the full set of W3C contributors, and if those disclosures came with an offer to license, and the resulting article wouldn't be specific to Apple unless Apple's behavior was actually shown to be an outlier.

Seems like the title is written that way because the article focuses on Haavard's findings, which seems to center around Apple.

Seems like a real journalist would do some investigation and provide context instead of focusing on Haavard's "findings."

And how often are other companies also exercising their rights to not commit these patents? Is Apple really being unique, or is this a story because the word "Apple" is in the headline? In the standards groups that I contribute to, patent disclosures (both with and without an offer to license) is a common occurrence.

Look at it this way: if joining a standards committee meant that you were _required_ to freely licensee any patent you own in any area that the committee someday chose to work in, then you've just signed a blank check.

Disclosures are not required because you are expected to license, they are required so you can work on the standard while showing that in good faith you are not holding submarine patents on that standard's technology. Basically, the body of the article says "Apple is playing by the rules that the W3C laid down, and the same rules every other contributor follows as well. How dare they".

If Ars were to be interested in producing quality original content, they would do a survey on how often such disclosures are received from the full set of W3C contributors, and if those disclosures came with an offer to license, and the resulting article wouldn't be specific to Apple unless Apple's behavior was actually shown to be an outlier.

Seems like the title is written that way because the article focuses on Haavard's findings, which seems to center around Apple.

Seems like a real journalist would do some investigation and provide context instead of focusing on Haavard's "findings."

Seems like a real journalist would like to keep an article focused on a single point and not include every possible thing, however minutely related, in the article.\sarcasm

Standards groups reasonably prefer to standardize technology that is unencumbered by intellectual property. But, when companies own valuable intellectual property, they are not likely to go along with that goal. Apple's patents on touch interfaces are clearly quite valuable. The W3C is probably not going to be able to standardize a touch interface that can be implemented without implementers paying Apple royalties. The IETF also tried to avoid standardizing patented technology. But they had to accept a policy where working group participants were required to disclose patents and promise fair and non discriminatory licenses to use the patents. In general, we don't know exactly what terms have been worked out to deal with patents because almost all of the agreements are reached in private. Most of the people who write for Ars imagine that there is no history of companies paying royalties for software patents and that the enforcement of a patent means that companies will not be able to implement the patented technology. Neither of these ideas is correct. All of the major companies have worked out agreements with each other where money changes hands on some kind of fair terms. The real question with Apple is what terms they are prepared to license their patents on. The fact that a burst of litigation has popped up surrounding their patents suggests that they are resistant to licensing them on fair reasonable and non discriminatory terms. That is the news. The fact that W3C may have to face up to the reality of patents is just a result of an intersection of their interests with technologies that are prone to patents. Any time software technologies get close to hardware patents are likely to appear.

According to W3C rules, Apple needs to disclose the patents. Now Apple is being accused of misusing patents purely because it disclosed patents that caused W3C to take time to evaluate them? I'm not normally one to defend Apple, but this claim is fairly disingenuous.

According to W3C rules, Apple needs to disclose the patents. Now Apple is being accused of misusing patents purely because it disclosed patents that caused W3C to take time to evaluate them? I'm not normally one to defend Apple, but this claim is fairly disingenuous.

It's more of Apple disclosing the patents at the last minute and is costing W3C more time and money, further delaying development.

Apple's work on WebKit and with W3C has undoubtedly helped the Web community. But actions such as this show the company's approach to standards and intellectual property is, at best, inconsistent, and and worst downright unhelpful: if open standards and Apple's IP interests conflict, it's the IP interests that win out.

Indeed. Maybe it isn't surprising to see inconsistent behavior in a company of that size, but it was just this week that Apple was fighting the good fight on the WebKit mailing list, pushing back against Google's attempt to include Dart code. Ironic.

I guess there are some Open Web supporters in Apple, but overall, the web isn't a goal in itself for Apple, its other interests will win out if they conflict.

According to W3C rules, Apple needs to disclose the patents. Now Apple is being accused of misusing patents purely because it disclosed patents that caused W3C to take time to evaluate them? I'm not normally one to defend Apple, but this claim is fairly disingenuous.

It's more of Apple disclosing the patents at the last minute and is costing W3C more time and money, further delaying development.

This. And also, Apple does not offer to licence the patents, and it doesn't offer to help with the standards.

As the article says, it seems that Apple is playing by the rules, but is playing in such a way as to slow down the development of open standards.

I'm with RobL777 on this one. The war on Flash, this type of crap, basically Apple's goal is to drive developers and consumers to their closed ecosystem store.

What computer developer wouldn't dream of not only controlling a major OS, what hardware it can run on - but also the only store you can buy programs for it with complete veto control on what can or can't be sold?

Bow to corporate overlords.

You're using Apple's "war on Flash" as an example of their driving developers and consumers into their 'closed ecosystem'? I can't think of a worse example. Apple's war on Flash is pretty much the sole driver for the success of (open standard) HTML5, especially on the mobile web.

"There's no win possible for Apple—just wasted time and money for those seeking to make the Web a more effective, more open platform."

This is where the author is wrong. A delay IS a win, the only win Apple can have, and presumably the one it is playing for. If Apple licensed the technology for a fee, or worked on the standard and had to license royalty-free, it means implementations of touch similar to Apple's hitting mobile browsers and removing some of Apple's differentiators. If the delay is long enough, then Apple will be out with the next thing before everyone else gets their implementations to market-- and that's enough. That's probably worth a lot more to Apple than any licensing fee they could get, and certainly more beneficial to Apple than royalty-free licensing. Getting around the implementation will take time-- and that's the point. That's the value of patents to Apple, aside from the usual "self-defense" excuse everyone uses these days.

Apple's work on WebKit and with W3C has undoubtedly helped the Web community. But actions such as this show the company's approach to standards and intellectual property is, at best, inconsistent, and and worst downright unhelpful: if open standards and Apple's IP interests conflict, it's the IP interests that win out.

Indeed. Maybe it isn't surprising to see inconsistent behavior in a company of that size, but it was just this week that Apple was fighting the good fight on the WebKit mailing list, pushing back against Google's attempt to include Dart code. Ironic.

I guess there are some Open Web supporters in Apple, but overall, the web isn't a goal in itself for Apple, its other interests will win out if they conflict.

The difference is that Dart is a project being privately developed that is meant to be open-sourced for the community, whereas this is an open-source standard which Apple is trying to privatize. I'm with Google, when it comes to Dart.

W3C "developers" just found some ready-made specifications with most interfaces already defined developed BY Apple lying around, copied those without checking with Apple whether those are encumbered by any patents, added some arguably minor tweaks and tried to release it as an "open standard". And now when Apple told them that there might be patents protecting those, W3C people actually dare to say Apple is stalling *THEIR* development ?

It takes quite a lot of time to develop these specifications, and Apple paid for that development from their own pocket, while W3C people basically copied it without asking permission.You want NOT to be encumbered by patents ? How about developing a specification by yourself instead of copying one from a commercial source ?

Apple's work on WebKit and with W3C has undoubtedly helped the Web community. But actions such as this show the company's approach to standards and intellectual property is, at best, inconsistent, and and worst downright unhelpful: if open standards and Apple's IP interests conflict, it's the IP interests that win out.

Indeed. Maybe it isn't surprising to see inconsistent behavior in a company of that size, but it was just this week that Apple was fighting the good fight on the WebKit mailing list, pushing back against Google's attempt to include Dart code. Ironic.

I guess there are some Open Web supporters in Apple, but overall, the web isn't a goal in itself for Apple, its other interests will win out if they conflict.

The difference is that Dart is a project being privately developed that is meant to be open-sourced for the community, whereas this is an open-source standard which Apple is trying to privatize. I'm with Google, when it comes to Dart.

I won't give a detailed answer because I don't want to go too far off topic. And in any case the Apple devs on the WebKit mailing list explain why Dart is bad for the open web far better than I can, anyone interested in the topic should read those.

*sits back with a bag of popcorn and waits for the Apple mothership to launch its squadron of iFans to defend it at all costs.*

Apple is worse then Microsoft ever was because even at its ugliest the folks that used Windows knew something smelled. And MS was far from this innocent company who was being bullied by everyone else.Apple fans have their blinders on and refuse to admit that Apple is no longer this underdog that needs to be defended at all costs. How about some criticism when deserved eh?

W3C "developers" just found some ready-made specifications with most interfaces already defined developed BY Apple lying around, copied those without checking with Apple whether those are encumbered by any patents, added some arguably minor tweaks and tried to release it as an "open standard". And now when Apple told them that there might be patents protecting those, W3C people actually dare to say Apple is stalling *THEIR* development ?

It takes quite a lot of time to develop these specifications, and Apple paid for that development from their own pocket, while W3C people basically copied it without asking permission.You want NOT to be encumbered by patents ? How about developing a specification by yourself instead of copying one from a commercial source ?

...and yet Apple didn't chime in on this until the last second, before which they deliberately absented themselves from the proceedings. If-- if-- the similarity is as obvious as you say it is, this only lends weight to the accusations of obstructionism.

Also, your implicit expectation that standards committees should re-invent the wheel runs almost exactly against the practices that have produced the best work of the W3C standards committee. For example. the Ajax standard is based directly on a Microsoft DirectX control.

Apple is just trying to stop the gang-banging for its IP, in which it invested a lot to research, develop and bring to market. Remember, unlike the criminal justice system, the legal system behind intellectual property doesn't help IP owners unless they help themselves--by fighting back. That's life in the tech industry. Anybody with brains knows this. For everyone else: ignorance is no excuse under the law. Apple revolutionized the smart phone industry and reinvented the tablet. The aftermath was bound to look dirty.

You're using Apple's "war on Flash" as an example of their driving developers and consumers into their 'closed ecosystem'? I can't think of a worse example. Apple's war on Flash is pretty much the sole driver for the success of (open standard) HTML5, especially on the mobile web.

I hated Flash before Steve Jobs made it cool, but it's not unreasonable to think that their anti-Flash position was to funnel development into their App Store and away from compatibility with other mobile platforms.

You're using Apple's "war on Flash" as an example of their driving developers and consumers into their 'closed ecosystem'? I can't think of a worse example. Apple's war on Flash is pretty much the sole driver for the success of (open standard) HTML5, especially on the mobile web.

I hated Flash before Steve Jobs made it cool, but it's not unreasonable to think that their anti-Flash position was to funnel development into their App Store and away from compatibility with other mobile platforms.

So Apple's behavior was to the potential detriment of others who relied on Flash for their business. Regardless, the community benefited from it and will continue to reap the rewards, sooner than otherwise. You should thank Apple, if not with your business then with your words.Think of how much money Microsoft has lost and will continue to lose, due to the open source software movement. Do you criticize OSS for that?

You're using Apple's "war on Flash" as an example of their driving developers and consumers into their 'closed ecosystem'? I can't think of a worse example. Apple's war on Flash is pretty much the sole driver for the success of (open standard) HTML5, especially on the mobile web.

I hated Flash before Steve Jobs made it cool, but it's not unreasonable to think that their anti-Flash position was to funnel development into their App Store and away from compatibility with other mobile platforms.

Sure, but does Flash even support the proper idioms for touch based interaction? Because it certainly didn't at the time.

Apple is just trying to stop the gang-banging for its IP, in which it invested a lot to research, develop and bring to market. Remember, unlike the criminal justice system, the legal system behind intellectual property doesn't help IP owners unless they help themselves--by fighting back. That's life in the tech industry. Anybody with brains knows this. For everyone else: ignorance is no excuse under the law. Apple revolutionized the smart phone industry and reinvented the tablet. The aftermath was bound to look dirty.

Quite the contrary, much of Apple's IP is so stupidly broad that its a poster child for patents gone wrong. Design patent on flat, rectangular, round-cornered things, for instance.

Apple uses its IP not to defend its R&D efforts, but as a means to eliminate any vaguely effective competition.

LOL, So Apple developers are suppose to remember all the patents they have, and point it out right when working, Hey this is our patents!!!!!!

It is more likely those drafts gets to a different department and those department try to find if they have a patents or not before a deadline. They discover a few, they track it, prove it and do all sort of things before the deadline. And hand its back.

When did you hand in your homework / work many weeks before the deadline? Most of us properly hand it last day, some last min, and some in the last week.

So Apple's behavior was to the potential detriment of others who relied on Flash for their business. Regardless, the community benefited from it and will continue to reap the rewards, sooner than otherwise. You should thank Apple, if not with your business then with your words.

I think they were on the right side, but I'm not sure they were in it for the right reasons. I don't feel a need to thank Apple either way, because they were acting in their own self-interest. Even within the context of Flash, Apple has arguably been a benefactor more than a detractor. I believe many Macs shipped with Flash, and Adobe's Creative Suite has long had a mutually beneficial relationship with Macs. You can still buy CS on Apple's site, for example.

Quote:

Think of how much money Microsoft has lost and will continue to lose, due to the open source software movement. Do you criticize OSS for that?

I don't see MS losing money as a bad thing, and losing money via competition that actually works like a free market is nothing to complain about. The complex stuff would be when i4i sued MS for patent infringement, where there is a somewhat desirable result (a monopolist being harmed) through undesirable means (a lawsuit using a legal monopoly). The lawsuit was frivolous, but one might argue that MS deserved it for all of their ill and illegal behavior throughout the years. That said, my viewpoint was against i4i in this case.

You're using Apple's "war on Flash" as an example of their driving developers and consumers into their 'closed ecosystem'? I can't think of a worse example. Apple's war on Flash is pretty much the sole driver for the success of (open standard) HTML5, especially on the mobile web.

Apple's war on Flash was solely to keep its closed ecosystem. And I can cite the H.264 case as something against the open Web too.

dollyllama wrote:

You should thank Apple

For what? So what Flash isn't on the iPhone, it's on Android and it has more market share.

Dmanrocks22 wrote:

The difference is that Dart is a project being privately developed that is meant to be open-sourced for the community, whereas this is an open-source standard which Apple is trying to privatize. I'm with Google, when it comes to Dart.

There's no difference, Google has full control over the development, this isn't how standards are done!!!